2018 Environmental Law Student Conference

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In March UWE Bristol participated with students (and staff) from Cardiff University and Swansea University at this annual Law Conference.

a photo of a green hedgerow in the sun with orange flowers  a teaching room with students in discussion whilst sitting at tables arranged in a horseshoe

Elena Blanco, Associate Professor and Acting Head of the Environmental Law Research Unit, worked with an extremely committed group of students of Environmental Law from UWE’s undergraduate (LLB) and postgraduate courses (LLM and PhD) to organise and run this year’s conference. Now in its fourth year, the Environmental Law Student Conference provides students with an opportunity to present on topics featured in their studies of environmental law, globalisation and natural resources law. The conference also provides the opportunity to network, socialise and share ideas with students from different law schools in the region.

The organising student committee at UWE was integrated with Cleverline Brown (PhD student), Siti Binti  Rosli (LLM) and Saluuga Hassan (LLB 3rd year). The students selected the different panels: Human Rights and the Environment; Climate Change and Trade, Technology and the Future of Environmental Challenges. A variety of students from UWE and Cardiff University participated by giving excellent, provocative and confident presentations and engaging in an open and lively discussion with the audience. Students from Swansea chaired panels and contributed to the discussion.

The day was inspiring and engaging with a wide range of topics featured in the presentations including pollution caused by business activities, environmental pollution, access to water in Israeli occupied Palestinian territories, the need for supranational governance on Climate Change and, the legal implications of alternatives on environmental discourses. From the practical and topical to the conceptual our students showed a keen interest in environmental and sustainability matters as well as being ‘part of the solution’ to environmental challenges from a variety of political and conceptual points of view.

This year a prize was offered to the best presentation by the United Kingdom Enviornmental Law Associaton (UKELA), Wales Working Party. The presentations will be judged by members of UKELA WWP who are legal professionals from Cardiff-based chambers and law firms. The winner will be granted a year’s free membership of this organisation!

The twenty four participants found the event extremely valuable, well organised and run, fun, fluid and well spaced out with a great balance of time to share views and informal discussion and some more formal presentations. Individuals commented (on the feedback sheets returned to the organisers) on how much they enjoyed the opportunity to present in public beyond the classroom and beyond their own university but among such a friendly and welcoming like-minded group of people.

Thomas Neill, a final year LLB student at Swansea University, said: “I found the conference really enjoyable, there were a high quality and varied set of presentations which lead to some really interesting debates. It was also good to be able to network with students from other law schools and hear their thoughts on the issues facing environmental law and enforcement. I found it refreshing to have a wider discussion on environmental law rather than focusing on the issues relevant to my own course”.

Tobechukwu Kanayo Okonkwo, another final year LLB student who attended, said: “My time at the Environmental Conference was an enlightening experience. It allowed me to meet like-minded people and open my mind to different perspectives concerning the environment”.

I personally have enjoyed the experience enormously and plan to continue to work with our talented students further in organising other events and in taking and showcasing our fantastic work further.

Elena Blanco, Associate Professor
Acting Head Environmental Law Research Unit, Bristol Law School (FBL) UWE

Repair Acts

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In March 2018 Elena Blanco was invited to take part in the exciting network of artists, social scientists, lawyers, environmental and social justice activists brought together under the Repair Acts (AHRC Funded project).

Teresa Dillon, Professor of City Futures at the School of Art and Design, UWE (Co-Investigator with Caitlin DeSilvey, Exeter, Co-investigator) brought together a wide-range of perspectives, research and experiences within the creative and exciting background of the Pervasive Media Studio  in the Watershed.

The day moved from the conceptual, to the stories and methodologies of practice and research towards a more socially just, sustainable system that abandons the capitalist poisoning agenda of persistent, unlimited growth. Bringing forward some of the discussion that arose on the research event organised by Elena Blanco on ‘The Future of the Commons’ on a ‘post-value paradigm’ and a new role for law and policy the Repair Acts workshop identified a network of systems change, ideas and policy that emerged as a next step of this creative project that will develop throughout 2018. This was followed by a public event at Arnolfini by with Ravi Agarval, Ben Gaulon and Lara Houston  (Urbanknights.org)   For more information please visit http://repairacts.net/

 

Roundtable Assessment – ‘The Future of the Commons’ with Keynote Speaker David Bollier

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Elena Blanco, Associate Professor on International Economic Law, assesses this February event

On 28 February 2018 while Dr Philippe Karpe, Visiting Scholar of the Environmental Law Research Unit (ELRU) and International Law and Human Rights Research Unit (ILHRU), stayed at UWE Elena Blanco chaired and organised a roundtable on ‘The Future of the Commons’ as one of the events during his month long stay.

Philippe Karpe’s work for CIRAD in Kenya on natural resource management and his scholarship had touched and explored this alternative, sustainable discourse of ‘The commons’ not just as a natural resource management tool but, more importantly, as a challenge to traditional law practice and a re-framing of law as an instrument of social and environmental justice.

We were extremely fortunate to have David Bollier, the main authority in ‘The Commons’ scholarship and practice, to accept our invitation and join us via (green) Video Conferencing to share his latest work on the understanding of ‘value’ and its influence and articulation in policy. David has inspired a large number of researchers and activists through with his best known work ‘Thinking Like a Commoner’ and, after his keynote, he engaged in a lively discussion with invited participants and discussants.

With a topic as poignant as this paradigmatic ‘Commons Thinking’ we decided that this first roundtable (we would like more events like this to follow) would be critical and conceptual while a later event (which will be organised by the ELRU in June) will engage with practical perspectives and activism. Hence, the invited discussants to this event were critical thinkers and theorists like Dr Sam Adelman (Associate Professor at the School of Law of the University of Warwick), Dr Vito de Lucia (Researcher at the KG Jebsen Centre for the Law of the Sea, UiT Arctic University of Norway) and Professor Anna Grear (Professor at the School of Politics and Law of the University of Cardiff) to join Dr Philippe Karpe and his very interesting practical and theoretical insights into the potential of ‘commons thinking’. The audience included members of the ILHRU, the ELRU, FET and the Bristol Business School, including our doctoral students.

The workshop began with David Bollier’s keynote speech. He pointed out that that there are a multitude of ways to approach the concept of the common. Whilst many politicians and individuals working on issues relating to economics and property rights focus on the resources aspect of the commons it should in fact be viewed as a social system with a community of values, rules and practices relating to resources. Traditionally, natural resources such as fisheries, farmland and wild game have never been considered as significant for economic purposes because there is no direct cash attached to it. Anthropologists appear to be the ones most able to understand the concept as they view the commons as a food system in a community, be it in an urban or agricultural setting. Indeed the commons can be seen as a new movement enabling ordinary people to use and more importantly share and manage resources (eg community garden, public common partnership, wifi nets, etc). Often, the key features of these communities are open design and sharing.

David Bollier stressed that there is a burgeoning world of very diverse commons initiatives, all based on shared benefit, fairness, equality and inclusive participation which are the core elements of the commons. The idea is that individuals negotiate, collaborate and come to an agreeable conclusion. As a result the commons create social bonds, a social movement that exists outside of the State and politics. However, because it is non-conventional it is often viewed as irrelevant. Yet, this discourse and vehicle of expression can be used to counterbalance the politics of market. It is a new vision and paradigm of politics and governance as it is a politics of belonging. The commons are a different philosophy of human aspiration and existence, away from the capital market and liberalisation philosophies and values. In this view radical individualism is destroying social bonds.

That being said, the commons is not only a critique that challenges the systemic limitations of the neoliberal economics and political culture but also an inspiring platform for reform. A long history of the commons allows for the concept to be anchored in political and legal tradition. As the concept of the commons allows for transnational collaboration it reimagines the State and law more generally. It opens up spaces that are contextual. Moving forward, David Bollier suggested that the next step should be to bring together small initiatives with a view to develop horizontal relationships between the movements. This would allow the organisation of politics beyond political parties as well as be the opportunity to create a theory of values that focuses on non-monetarised elements. David Bollier concluded his keynote speech by sounding a note of caution: by ushering the commons into mainstream it should not lose its true meaning.

Several important insights arose from the event including many critical ‘cautions’ such as the danger of top-down (even if green) approaches, the need for participatory structures, the importance of formulating alternatives to development and the importance of escaping the ‘value trap’ that dominates all aspects of our lives at the moment.

The idea of ‘Legal Hacks’ was discussed at the end of the event and put forward by David as a way of transitioning to a sustainability informed, participatory approach to social, economic and environmental approaches. He also linked his work to that of his good friend George Monbiot who as a public figure regularly formulates alternatives to mainstream destructive economic approaches.

We think we speak for others when we say we left the event inspired, hopeful and determined to take this thinking and scholarship further. Elena Blanco was able to bring some of the insights of the day to the ‘Repair Acts Network’ event which took place in 13 March (see separate post).

If anyone is interested in participating in a ‘local-global’ commons inspired multidisciplinary project, please get in touch with Elena Blanco at Elena.Blanco@uwe.ac.uk.

Elena Blanco (Associate Professor on International Economic Law, Acting Head ELRU) and Noelle Quenivet (Associate Professor in International Law, Head ILHRU)

Changing Culture: The Problem of Adversarialism at the Heart of Police Disclosure

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Dr Tom Smith writes on the National Disclosure Improvement Plan

In the wake of the cases of Liam Allan, Isaac Itiary, Samson Makele, and Oliver Mears, the National Police Chiefs Council (NPCC) has issued a National Disclosure Improvement Plan. Whilst the document states that this plan has been in gestation for six months, the timing and tone suggest a hurried response to the scandal that has engulfed the police. The serious questions raised by lawyers, politicians, the media, and the police themselves suggest a new approach is needed to the disclosure of evidence in the pre-trial stages of the criminal process. The document appears to be the current embodiment of that desire to “change culture”. However, the plan shows a misunderstanding of the roots of the issue of inadequate disclosure, roots which reach deep below surface issues such as resources, the management of digital evidence, expertise, training, and leadership. At the bedrock is the fundamental fact that the police are an adversarial institution, deeply committed to the apprehension and prosecution of offenders.  This adversarialism inevitably influences the police approach to investigating evidence and sharing it with the defence – their opposition. Giving the police sole responsibility for conducting an impartial assessment of whether evidence is exculpatory is a design flaw. Without addressing this, it is hard to envisage real change following.

Police resources have fluctuated over the years; the types of evidence they have had to manage has changed over the decades; the volume and type of work dealt with has always been subject to variation. A consistent problem throughout has been the inability of some (not all) police officers to fairly manage investigations and the supply of relevant information to the suspect and their lawyer. The NPCC plan, sadly, does not appear to address the fundamental problem suggested above. It is generally vague and lacking in detail (which is perhaps not surprising considering the speed with which it has been issued). Several of the lines included in it are drawn from existing guidelines for disclosure (particularly the Code of Practice for the CPIA and the AG’s Guidelines). A clear message in the plan seems to be the problem of capacity to do the job, due to both a lack resources and time. This is likely, on a large scale, to be a factor, especially when dealing with large amounts of evidence. But if one considers the cases of Allan and Itiary, both suspects directed the police to evidence that was exculpatory. It seems more likely that the problem was belief in the suspects’ guilt rather than a lack of resources to investigate. This is arguably a problem of adversarialism; or perhaps more specifically, a problem resulting from the fact that the current disclosure scheme does not recognise the adversarial role of the police and the consequent risks.

The document talks about partnership, and rightly highlights the need for a close working relationship with the CPS (a problem evident from Allan’s case). The document implies that the defence community also needs to be engaged, although couches it in terms of the need for them to “take action”. This appears to mis-state the problem – as written, it suggests that the problem  is one of intransigence on the part of suspects and defendants.

Perhaps this was not the intended meaning; but it would seem more appropriate to suggest that it is the police that need to take action to engage more effectively, with not only the defence community but individual suspects and their lawyers in all cases, for all types of offences. Indeed, the plan focuses on rape and sexual assault cases; this is too narrow, highlighted by the recent collapse of a human trafficking case due to non-disclosure (which featured the remand of one defendant, who gave birth whilst in custody). Beyond this, the plan largely ignores the issue of engagement and partnership with the defence community. This seems a missed opportunity. Considering the modern drive for co-operation and openness encouraged by the Criminal Procedure Rules, the Criminal Procedures and Investigations Act (CPIA) 1996, and case-law, one would think that such a culture might lead the police to be more open too. Yet, cases such as those mentioned at the outset suggest that the police station (not generally open to external scrutiny) remains a bastion of secrecy and game-playing.

Since, in this environment, the suspect may now risk being punished for exercising their right to silence, it seems hypocritical for the police to be left largely free to be secretive and selective in what they choose to share. This is particularly the case prior to charge, with very few requirements to disclose, little scrutiny of this process, and few consequences for the police. Indeed, the review of the Allan case conducted by the Metropolitan Police and the CPS (released in late January 2018) makes no recommendations for action directed at those individuals responsible for the failings in that case. Despite many years worth of guidance aimed at both streamlining and encouraging disclosure (which are, arguably, contradictory objectives in any case), the problems in achieving it fairly are “systemic and deeprooted” (as both the NPCC plan and the DPP have stated). The fundamental flaw in the CPIA 1996 disclosure scheme – that primary responsibility lies with the police – was followed by two decades of clarification and amendment (for example, via the Criminal Procedure Rules and the Attorney General’s Guidelines), with apparently limited progress. The intentions of the NPCC in issuing this plan may be good, but ultimately even soft regulation has failed to change this culture. It’s hard to see how more self-regulation (which appears to primarily focus on monitoring and further standard-setting) will work. The most effective catalyst for change so far has been media attention and the public failure of cases.

If one accepts the argument that the fundamentally adversarial nature of the police and suspect relationship will continue to undermine a workable, police-managed disclosure scheme, this plan seems akin to a plaster on a leaking dam. So, how can they issue be tackled? The suggestion of culture change emphasised in the plan would need to go much further than well-intentioned rhetoric. Disclosure should be managed by an independent and objective figure; one might suggest a Custody Officer style figure, but this role has been subject to criticism over the years (exemplified by the studies of McKenzie and Dehaghani). It should be a figure distinctly separate from the investigation and the police – the equivalent of a Disclosure Officer without the inherent conflicts such a role has. This would move away from the entrenched adversarialism that risks tunnel-vision regarding the guilt of a suspect (despite explicit guidance to the contrary). Another alternative would be a presumption that the police will disclose all material, with exceptions (for example, on public immunity or sensitivity grounds) being clearly justified (as suggested by Professor Ed Cape in his letter to The Guardian (December 2017). This form of “total disclosure” could, however, potentially leave defendants and their lawyers (if they are represented) with a mountain of material to assess – with no more resources to do so. A different, but connected issue, is the transparency of the process. As such, a formal and recorded mechanism by which the suspect and their lawyer can request investigation by the police of relevant, exculpatory evidence would also be welcome. There should be a rebuttable presumption that the police will disclose when a request is made. When the police reject the need to investigate and/or disclose, they should justify this. All of this material should be available to all parties and be mediated by some external, non-adversarial figure. For example, if a defence request is rejected, there should availability of an appeal mechanism whereby a magistrate or Judge can review the decision. This would establish a transparent relationship between the police and the defence regarding disclosure. It is notable how little is known about the exact processes by which the police dealt with disclosure in the cases mentioned above – a more transparent process is needed. Alongside the NPCC plan, the DPP has announced that all current rape cases are to be urgently reviewed to ensure disclosure has been dealt with appropriately. Additionally, the Attorney-General is apparently conducting a general review, and the House of Commons Justice Committee will also investigate the issue. The NPCC plan and the DPP’s review are welcome but arguably inadequate; the solutions being offered will not fully address the problems discussed here, which appear to be widespread and deeply rooted. The latter two, if conducted thoroughly and in a manner that engages with various parties, have a better chance of truly driving a change in culture – one which is desperately needed.

CALR Staff Research Seminar Series relaunched

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The Centre for Applied Legal Research (CALR) has relaunched the Staff Research Seminar Series. The first instalment was held on 26 February 2018 and featured two presentations both related to banking and finance law.

Sam Bourton, PhD applicant and Associate Lecturer at the Bristol Law School, opened the session with a paper entitled ‘Revisiting Dishonesty – The New Strict Liability Criminal Offence for Offshore Tax Evaders’. She started by explaining the difference between tax evasion and tax avoidance. Whilst both are ways to minimise financial liabilities, evasion in contrast to avoidance is unlawful. It is the failure to declare income, assets and other activities although taxes are due on them. Tax evasion can be tackled via non-criminal and criminal penalties. Non-criminal tax evasion usually requires the individual to pay what is owed and civil liabilities might arise. If the tax evasion is viewed as criminal then civil as well as criminal penalties might be imposed. The key difference is whether the individual was dishonest. Ms Bourton pointed out that despite the vast range of statutory offences that could be used to tackle tax evasion the UK actually uses the common law offence of ‘cheating the public revenue’ because it is phrased in broad terms an can incur huge penalties. In this case the mens rea element of the crime is of utmost importance: the person must have been acting with dishonesty. The test to ascertain the character of the person and whether he/she is sufficiently blameworthy was spelled out in R v Ghosh and widely criticised notably because there is no one standard in relation to honesty/dishonesty. As Ms Bourton explained that first the jury might not be able to understand the context in which the act was undertaken and second what is an honest or dishonest act hinges on each person’s own understanding of the concept of honesty. As a result it seems that the HMRC and CPS have only prosecuted the worst cases when it was easier to show dishonesty. The HSBC scandal revealed the scale of tax evasion in the UK and yet, HMRC only prosecuted one person and not for tax evasion but for lying on a form, COP9, asking him/her to confess to tax evasion. Recently HMRC has been given a target of 1,000 tax evasion prosecutions to be mounted per year. Concurrently the UK has adopted a new offence in the Taxes Management Act 1970 that allows for the application of a strict liability test, thereby removing the mens rea element of the crime for offshore offences. Here, tax evasion is now punishable by a fine and/or a maximum of six months imprisonment. Whilst many have expressed concern over the new offence, Ms Bourton stressed that it only applied to specific jurisdiction and only covered offshore tax evasion of £25,000 and over. At the same time the Ghosh test was revisited by the Supreme Court in Ivey v Genting Casinos, rendering the application of the test seemingly more straightforward. However, as Ms Bourton pointed out, this is not necessarily the case for cases relating to tax evasion. Ultimately the difference between tax avoidance and tax evasion hinges upon an individual’s own perception and therefore, according to Ms Bourton, motive must be taken into account. It crucially distinguishes between those who abide by the law and those who purposefully choose not to. Ms Bourton then finished her presentation by propounding her own (re)definition of the offence.

The next speaker was Prof Nic Ryder who presented the paper ‘Too scared to prosecute and too scared to jail?’ he had recently submitted to a journal for publication. Prof Ryder contrasted corporate liability as understood in the UK and in the US. He explained that the US had a long history of robust and forceful enforcement. In fact, when the scandal with Arthur Andersen LLP happened and the company was threatened with prosecution it yielded its licence as a consequence of which 25,000 employees lost their jobs. In other words, this move was tantamount to corporate death penalty. In light of this the Department of Justice altered its approach considering the impact of such actions on investors, employees and other relevant stakeholders. With this view it increased its use of deferred prosecution agreements, a move Prof Ryder questioned. Whilst such an attitude is mindful of the wider consequences of the prosecution of a company it is weak on deterrence. Indeed a company such as HSBC with a poor record of compliance with financial regulations such as weak anti-money laundering procedures, violations of the US Secrecy Act and violation of the UN sanctions regime will certainly not be deterred from continuing violating the law if deferred prosecution agreements are the preferred method of the Department of Justice to deal with financial crime. In the UK the situation is different. Courts have accepted the common law standard in relation to corporate liability for crimes which means that as long as it is possible to identify the person who has the directing mind and will of the company (Tesco Supermarkets LTD v Nattrass) a company can be prosecuted for violating financial regulations. In the UK deferred prosecution agreements are only used in relation to breaches of the Bribery Act 2010. Prof Ryder noted that in the UK the focus is increasingly on the prevention of economic crimes and thus verifying whether robust compliance procedures are in place. This, he believes, is a worthy mechanism that ought to be used more widely and not only in relation to bribery offences. Prof Ryder finished by explaining that the UK has launched a call for evidence in 2017 on corporate liability for economic crime and suggested five options for reform. He however believes that none of these options will be adopted as the consequences of the prosecution of banks are enormous for the domestic economy and there is no political appetite for such reforms. In other words ‘too scared to prosecute, too scared to jail’.

 

Brexit and Trade Relations

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This panel discussion with Christian Dadomo, Dr Clair Gammage and Dr Maria Garciatalk was organised by the lecturers of the module ‘EU Law’ offered to Year 3 students and the International Law and Human Rights Unit of the Centre for Applied Legal Research.

Since the beginning of this academic year 2017/2018 third year students on the LLB degree have had the opportunity to listen to a number of internal and external speakers on the issue of Brexit. On 16 February 2018 the team teaching EU law convened a panel discussion on ‘Brexit and Trade Relations’ comprised of Christian Dadomo, Senior Lecturer at UWE, Dr Clair Gammage, Lecturer in Law at the University of Bristol, and Dr Maria Garcia, Senior Lecturer in International Political Economy at the University of Bath. Each of them shared his/her thoughts on the topic and the session was then run in a Question Time format as students had been asked to send questions in advance to the chair, Dr Noëlle Quénivet, Associate Professor in International Law.

Dr Garcia began the session by setting the scene of the Brexit campaign and Brexit in relation to trade. She pointed out that whilst contestation of trade was a global trend and protests and concerns had been voiced against eg genetically modified organisms, chlorinated chicken, the privatisation of the NHS no such discussion was held during the Brexit campaign. Brexit did not seem to be about contesting global trade and its effects but migration and ‘taking back control’. The fact that there was so little discussion on trade might be explained by the fact that trade negotiations could only be held once the UK had left the EU since the EU has exclusive competence in negotiating trade agreements. Also she explained that if references were made to trade during the campaign it was usually about agreements with other States rather than trade as such. As a matter of fact the best prediction about individuals voting leave/remain was not the trade issue but education, attitude towards migration, etc. In preparation to Brexit trade has been becoming increasingly important as Prime Minister Theresa May referred to it in her Lancaster and Florence speeches and Foreign Minister Boris Johnson talked about it to recently. This has no doubt shifted the debate. Still, no discussion is being had on the contestation of trade policies. Dr Garcia suggested this might be due to the fact that it is too early to do so in light of other significant and more urgent problems. It might also be the case that the government has no clear idea of the precise content of future trade agreements. Moreover the UK government appears to send mixed messages, asking for a seamless trade relationship and yet being unable to adopt a clear position on how to tackled the issue of the two land borders through which it will trade (between Ireland and Northern Ireland and between Gibraltar and Spain). The UK White Paper on Trade reflects an inclusive and pro-development approach to trade that will however be difficult to deliver. Indeed, it appears that at the moment the UK is training individuals on issues relating to financial services rather than goods that are key to trade agreements with development features. Further, if the aim of Brexit is to regain sovereignty why should the UK accept American standards as well as dispute settlement mechanisms enshrined in trade agreements? Dr Garcia explained that it appeared that the UK was in fact anchoring itself in a thinking that supported what Steven Gill has described as the constitutionalisation of a neo-liberal regime through trade agreements.

The next speaker, Christian Dadomo, shared his thoughts on what the deep and comprehensive trade agreement favoured by the UK government could look like. Mr Dadomo first explained that before even starting discussions on such an agreement the UK and the EU needed to negotiate and agree on a withdrawal agreement focusing on three priority issues: EU and UK citizens’ rights, a financial settlement and the situation in Northern Ireland. The result of these negotiations were presented in a joint report on 8 December 2017. Such agreement also needs to take into account the future framework arrangements. As Mr Dadomo observed a number of elements are known. First, all free trade agreements the EU has negotiated are different: there is no one, unique solution as it is important that such agreements fit the various interests of the parties. The UK claims that as a soon-to-be former Member State of the EU it already complies with EU law and thus it should not be difficult to agree on such a trade treaty. Any solution between the UK staying a party to the European Economic Area Agreement to the UK applying the World Trade Organisation rules is on the table. On one end of this continuum of solutions is a very close association with the EU. Yet, it is already known that as the UK wants free trade and control over immigration it has expressed its clear wish to leave the Customs Union and the Single Market. Yet, the EU has specified no cherry picking is possible. It is also known that the UK rejects the Norway model as it would mean paying to get access to the Single Market whilst having no say in the law-making process and being obliged to comply with all EU rules, including those on the free movement of persons. On the other end of this spectrum lies the application of WTO rules which is often viewed as the worst scenario possible as it involves the imposition of tariffs on trade and rules of country of origin. In between these two extreme options two types of agreements, modelled on either the EU-Canada Comprehensive Economic and Trade Agreement (CETA) or the EU-Ukraine Deep and Comprehensive Free Trade Area, are available. Mr Dadomo contrasted the two agreements: whilst Ukraine accepts the acquis communautaire, Canada does not; whilst CETA is focused on trade (goods, intellectual property) the agreement with Ukraine also includes provisions relating to security, home affairs and justice. The key problem is that it is still unclear which kind of agreement the UK wishes to have with the EU apart from a ‘deep and comprehensive one’. The possibility of a ‘CETA +++’ has also been formulated. Mr Dadomo stressed that in any case the agreement will have to be bespoke but the possibility to customise some elements also means that conditions can be attached to them. The Swiss model that is highly bespoke is off the table as the EU does not wish further agreements of this type to be negotiated. Mr Dadomo finished his presentation by stating that until the UK clearly specifies what it wishes the agreement to contain it is difficult to provide a legal commentary, ascertaining whether the EU first can legally enter into such an agreement and second would be amenable to conclude such an agreement.

Dr Clair Gammage then turned her attention to the impact of Brexit on trade and human rights. She highlighted the complexity of the issue as it covers a variety of legal regimes and political opinions greatly differ on the subject-matter. First, she reminded the audience that the UK is still a member of the World Trade Organisation in its own right but that negotiations at the WTO are undertaken by the EU. Second, she pointed at the lack of understanding of how trade works on a multilateral level and that the lack of expertise in the UK relating to negotiating trade agreements. Indeed, tariffs (of eg agricultural products) are set by the EU in the WTO and these will need to be renegotiated by the UK. Tariff-free trade might be a solution. The UK has submitted a solution to the split between the EU and itself but other WTO members (eg the US) have already voiced their concerns or even opposition to the proposal. Unfortunately for the UK it is not allowed to discuss any trade agreements until it is outside the EU and this is not only due to the exclusive competence of the EU but such negotiations would also violate WTO rules. The WTO recognises two forms of free trade agreements: free trade areas and customs unions, both covering a wide range of treaties which means that the UK is likely to negotiate successful suitable trade agreements with third parties. The problem is time as such treaties take several years to be negotiated and concluded. Another problem faced by the UK relates to the existing free trade agreements between the EU and third parties. Dr Gammage shared her view that there is no automatic roll over for such treaties which means that they would need to be renegotiated. As for trade standards, she explained that the UK will be bound by WTO standards (including those relating to sanitary and phytosanitary regulations) and, should it wish to export its goods to the EU, such goods would need to comply with EU law. Dr Gammage then moved on to discussing the effects of Brexit on human rights, arguing that at first sight it appears that there is no erosion of rights. Yet, the situation relating to Northern Ireland that is regulated by the 1998 Peace Agreement is not entirely clear. Further and more generally, the Charter of Fundamental Rights of the European Union will not apply in the UK anymore. This needs to be given proper consideration as a number of rights enshrined in the Charter are not protected elsewhere (eg in the Convention for the Protection of Human Rights and Fundamental Freedoms) and even though the government is committed to retaining EU law it should be borne in mind that such laws can be changed both by Ministers and Parliament and that devolved administrations might not be involved in such decisions. This will have considerable impact on economic rights but could, as Dr Gammage argued, be included in the withdrawal agreement. Moreover the right to equality does not exist as such in the UK as it is entirely based on EU law. Such a right, different from the prohibition of discrimination based on various factors, could be lost. As for the interrelationship between Brexit, trade and human rights Dr Gammage explained that changes in trade relations should be made with great care as a viable economy is of paramount importance. A further complication relates to accepting, even if reluctantly, trading standards in free trade agreements that might directly impact on the local population. For example, the issue of trade in agricultural products must be carefully thought through as the mass import of agricultural goods may lead to less employment which itself can bring salaries and wages down. Also the UK could be bound by trading standards that apply extra-territorially (eg EU animal welfare rules). Dr Gammage thus suggested it might be better to align UK standards on EU regulations for such matters. However, in the grand scheme, the UK will have to find funds to cover for the lost trade and subsidies to eg agriculture and such funds might in fact be divested from assistance to eg disabled and homeless persons. Dr Gammage concluded on the sad note that the UK will in the long term be vulnerable to internal and external troubles.

After the presentations questions from the floor focused on (1) the impact of Brexit on the 1998 Northern Ireland Peace Agreement, (2) the potential checks at the border between the EU and the UK, (3) the impact of Brexit on trade between the UK and South America as well as (3) the future shape of trade agreements between the UK and African States and the Commonwealth.

 

 

 

Alcohol and Football Spectators: Time for a Choice?

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Matt Hall, Associate Lecturer at UWE Law School, recently published this article on the proposals of the Welsh Rugby Union to introduce ‘dry zones’ within Cardiff’s Principality Stadium following increased reports of anti-social behaviour during Welsh international rugby matches. The article also discusses alcohol legislation at football and the Licensing Act 2003.

image of three red feathers above the letter W R U for

Spectators of football have long been subject to
strict alcohol curtailment via s 2(1)(a) Sporting Events
(Control of Alcohol etc.) Act 1985. Yet, despite its repeal by the Licensing Act2003, no Commencement Order has been forthcoming. To tackle issues with alcohol related disorder at rugby, the Welsh Rugby Union have proposed their own response in a manner that, unlike s 2(1)(a), will not blanket ban alcohol from all. Even in its absence, an abundance of legislation exists to tackle alcohol related disorderly behaviour without the need for specific legislation.

Introduction
Alcohol, its consumption and effects have long been a concern to the legislature who in turn, have introduced numerous legislative measures. For example, The Defence of The Realm Act 1914 was enacted shortly after the outbreak of World War One. The government, believing alcohol consumption would negatively impact the war effort curtailed the times publicans could trade. The Licensing Act 1964 (LA 1964) introduced new permitted hours for venues, 11am until 1030pm with a break in between of two and a half hours.  24 years later, the Licensing Act 1988 (LA 1988) removed the ‘two and a half-hour rule’ and extended opening times until 11pm. Football has also been subject to legislative alcohol curtailment. Introduced following the deaths of 39 spectators preceding a European Cup Final in Heysel, Belgium to make stadiums “safer places for decent people” was The Sporting Events (Control of Alcohol etc.) Act 1985, with s 2(1)(a) forbidding the possession of alcohol in ‘direct view’ of the event.

The introduction of the Licensing Act 2003 (LA 2003) was advocated in the White Paper as a liberalising departure from the, to quote Jack Straw, ‘complex and anomaly riddled licensing systems’ of LA 1964 and LA 1988. Concern surrounded binge-drinking, where many indulged in as much alcohol as possible before the 11pm closures followed by a systematic mass exodus into city centres where disorderly behaviour was becoming common.

Yet, despite similar consequences of binge-drinking and congregation being prevalent at football, the liberalisation of the licensing laws changed nothing. The LA 2003 did repeal S 2(1)(a), but 15 years later, no Commencement Order giving effect to this has been forthcoming. Therefore, this article discusses the similar issues faced at football that the LA 2003 sought to address within the Night Time Environment (NTE) and outlines alternative options available to the authorities should spectators of football ever be permitted to consume alcohol within view of the event.

Unintended Consequences
The LA 2003 aimed to reduce drunkenness and disorderly behaviour within the NTE by allowing some establishments to operate under 24-hour licences. By spreading the ‘kicking-out’ of revellers gradually rather than systematically and allowing customers to consume alcohol in a more moderate manner, this would lessen mass congregation in city centres and the culture of binge-drinking before the regular 11pm closure times.

In the football context, there are similar connotations. The s 2(1)(a) restrictions mean many spectators who are aware that alcohol availability is hampered binge-drink prior to the game. When in the stadium, many spectators congregate in the concourse bars at half-time, out of ‘direct view’ of the playing area and within the boundaries of the law. In similar fashion to the NTE, many spectators find themselves decanting systematically to one area where jostling, spilled beer and outbreaks of fights are known to occur. Liberalising the availability of alcohol by allowing football spectators to consume alcohol within view of the playing area could be one way of lessening half-time congregations and pre-match binge-drinking. That said, whether the LA 2003 has had the desired effect of reducing binge-drinking and/or alcohol related disorderly behaviour within the NTE is still a matter for debate.

In 2017, The Licensing Act 2003: Post-Legislative Scrutiny outlined that since 2005, alcohol related disorder has “gradually decreased.” The 2013/14 Crime Survey of England and Wales records that in 2005, there were 2m violent incidents in which 1.3m (53%) victims believed the offender to be under the influence of alcohol. In 2013/14, 1.1m violent incidents had been recorded with 704,000 (53%) perpetrators perceived to be under the influence of alcohol. Also seeing a decrease in arrests, is football. The Home Office outlined that in season 2016-2017 there were 1,577 arrests (excluding friendlies and under-21 matches) amongst the 39.9m spectators who attended (0.004%). The low proportion of arrests clearly brings into question the requirement of such draconian legislation aimed solely at football spectators.

Changes in consumer behaviour have also seen a new challenging phenomenon emerge in that today, the lower prices in supermarkets and off-licences mean they account for 70% of alcohol sales. With this has what has come to be termed “pre-loading.” Like binge-drinking in that now, many enter the NTE highly intoxicated from alcohol consumed in private. This has similar undertones to the culture of many match going football spectators.

Therefore, if a Commencement Order were forthcoming, and s 2(1)(a) SE 1985 was removed from the statute books, whether this would reduce pre-match alcohol indulgence or concerns surrounding half-time congregation and disorderly behaviour is undetermined. Supermarkets and off-licences would still provide an alluring alternative given the higher price of refreshments in sports stadiums, something that rugby can attest to.

Blanket Bans
Rugby, which permits alcohol consumption within view of the event is not immune from alcohol related disorderly behaviour. “Pre-loading” and indeed half-time congregation to the bars is common despite it being legal to consume alcohol within view of the pitch. South Wales Police have often been critical of the behaviour of some spectators before, during and after international matches in Cardiff. So much so, that the Welsh Rugby Union (WRU) are considering implementing “dry zones” within Cardiff’s Principality Stadium to address issues of excessive language and anti-social behaviour that many spectators have reported.

The difference however, between football and the WRU’s proposal is that the criminal law will not enforce this. Clearly, football has a tainted history and the deaths of 39 Juventus supporters in Belgium provided the catalyst for the SE 1985 enactment. Nevertheless, critics have argued that the blanket nature in which the SE 1985 operates treats all football spectators to be problematic. Not all spectators who consume alcohol engage in disorderly behaviour. The majority are law-abiding citizens who will have their alcohol consumption curtailed for the actions of a small minority. The WRU may very well find this argument made to them should areas of the Principality Stadium become “dry zones.” Nevertheless, spectators retain the choice to consume alcohol, albeit in certain sections of the stadium, something spectators of football do not have.

The WRU proposal only encapsulates parts of one stadium as opposed to a blanket curtailing across the sport, meaning in regional matches alcohol would remain readily available. This would be an option to the English and Welsh Football Associations and their associate clubs, should s 2(1)(a) be removed. “Dry zones” for example, within family stands and enforced as part of terms and conditions of entrance could be a plausible option, thus, removing the need for the criminal law to enforce a blanket restriction and liberalising football from the SE 1985. If disorderly behaviour did occur, legislation is in place for the authorities to utilise.

Alternative Legislation
A 2001 report into disorder associated with cricket considered specific legislation mirroring that of football. It concluded that the existing public order legislation should be tested in the first instance. Should it ever be permitted for football spectators to consume alcohol within view of the pitch, this same legislation would be available to the police should alcohol related, or indeed non-alcohol related disorder occur.

The most obvious choice appears to be drunk and disorderly contrary to s 91 Criminal Justice Act 1967. Any person in a public place who is drunk and acting in a disorderly manner is liable to arrest. This includes premises that the public are permitted access, whether for payment or otherwise (s 91(4)). In essence, a football, rugby or cricket stadium. S 5 Public Order Act 1986 is also available to capture threatening words or disorderly behaviour that is likely to cause an individual to be harassed, alarmed or distressed whether alcohol related or not. Alternatively, it is an option not to allow drunk spectators into stadia via terms and conditions of entrance. This is common within the NTE where staff will often refuse entry to anyone they deem drunk. The justification for this is that s 141 LA 2003 forbids the selling of alcohol to anyone who is knowingly drunk. Thus, the door staff play the role of protecting the bar staff from drunk consumers. At sporting events, stewards are well placed to follow suit and refuse entry on this basis.

The issue here, however, is what amounts to “drunk”? The Post Legislative Scrutiny outlined concerns that s 141 was being “routinely flouted,” evidenced by the fact that since 2005 there have only been 92 prosecutions and 44 convictions. Evidence also pointed out that whilst it is obvious to determine that someone has had a drink, it is less obvious to determine the point at which someone becomes drunk. R v Tagg ([2001] EWCA Crim 1230) heard similar submissions, James Turner QC arguing that “drunk” was a vague concept, too vague to satisfy the requirements of precision that the ECHR requires. Rejecting this argument, Rose LJ confirmed the everyday meaning laid down by Goff LJ in Neale v RMJE ((1985) 80 Cr App R 20) satisfied precision requirements, that being; ‘someone who has taken intoxicating liquor to an extent which affects his steady self-control.’ Notwithstanding, to what extent self-control must be affected is not sufficiently determined.

Conclusion
Whether the LA 2003 has had the desired effect on NTE disorderly behaviour is still a matter for debate. For football spectators and despite the repeal of s 2(1)(a), it is certain that the liberalisation of alcohol legislation changed nothing. Rugby and cricket experience disorder amongst some if its spectators, both rely on existing legislation and the WRU is demonstrating ways in which to accommodate those who want to consume alcohol and those who do not. With this, spectators of rugby will have something football spectators do not: a choice.

In the absence of s2(1)(a), existing legislation is in place to ensure that football stadiums remain “safe places for decent people.” Much has improved with football; modern stadia; better stewarding; CCTV; and even the attitudes of many spectators themselves. The low proportion of arrests also demonstrate that football is changing for the better. The WRU proposal is sensible and could easily be adopted at football stadia where most spectators are law abiding. The time has clearly come to give football spectators a choice and allow them to consume alcohol as part of the match-day experience.

[1] Matt Hall, Associate Lecturer, UWE Bristol

The Impact of Brexit on Integrity and Corruption: Local and Global Challenges, by Dr Lorenzo Pasculli

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This talk was organised by the Commercial Law Unit and the International Law and Human Rights Unit on behalf of CALR.

Dr Lorenzo Pasculli standing in front of an projector screen, students in the foreground.
Dr Lorenzo Pasculli

On 14 February 2018 Dr Lorenzo Pasculli, Senior Lecturer in Law at Kingston University London challenged the audience to look at Brexit through the prism of corruption. No doubt this was an insightful and out of the ordinary guest talk for those who suffer from Brexit fatigue.

Dr Pasculli started by explaining that since Brexit or anything similar has never happened before it is difficult to find a theoretical framework to reveal what the consequences of Brexit will be on corruption. That being said, Dr Pasculli stressed that in his opinion Brexit has and will have an impact on integrity at a variety of levels as well as anti-corruption laws and policies.

In relation to integrity, the impact of Brexit can be felt in three areas: political, financial and commercial as well as systemic social. Dr Pasculli explained that the impact of Brexit on political integrity can be analysed at both macro- (ie public bodies, corporations and the media) and micro-level (ie individuals working in the public service) on the one hand and from an internal (ie British politics) and external (eg foreign affairs as well as other States) perspective. This risk factors relating to political integrity are chiefly due to the multiple and complex interests which create division as well as confusion and so mistrust that is amplified by what Dr Pasculli calls, ‘the wrong choice of decision-making device’ which was the referendum. At the internal micro-level there has always beena solid tradition of political integrity even when there were conflicts between personal views and the views of the party. The risk here is that if individuals externalise their dissent they might be reprimanded or marginalised for doing this (as it happened in some recent case). This might lead to the repression of pluralism and dissent. At the internal macro-level, the UK which is often viewed as the beacon of the rule of law is performing very poorly as politicians with undermined integrity did not explain the complexity of the issues and certain lobbying and media stained the Leave campaign of misinformation. Dr Pasculli pointed out that the lack of regulation of the British press exacerbated the influence of lobbies on certain press. The dearth of effective sanctions facilitates partisan press and political misinformation. Further the lack of mechanisms for politicians to step back, apologise for and correct the effect of misinformation on the general public (eg £350 million for the NHS campaign) undermines political integrity. Overall this atmosphere has led to (1) a phenomenon of deresponsabilisation; (2) reliance on emotions rather than reason and information when law and politics should be based on rationality, reasonableness and evidence; (3) general deterioration of political integrity and standing. The consequences of Brexit on external politics (outside the UK) should not be underestimated too. Discussions were had on possible emulations in the form of Grexit and Exitaly but they did not materialise. Most importantly Brexit has strengthened the global trends of populism and nationalism that clearly undermine political integrity as voters are given information that is not built and/or supported by evidence. Brexit, in other words, nurture the global trend of irrationality. After Dr Pasculli argued that this erosion of political integrity leads to ‘legalised forms of corruption’ (eg press being lobbied and lack of regulation of the press) he called for a widening of the definition of corruption in line with the anti-corruption convention. He highlighted the revolving door appointments as an example of lawful practice and stressed that research shows a disconnection between what people believe is unlawful and the actual regulation of particular activities. Dr Pasculli explained we should seize Brexit as an opportunity to raise awareness about these problems as well as ensure a better responsabilisation of certain politicians. Both internal and external pressure can be used to persuade the UK to adopt necessary regulatory measures.

Dr Pasculli then moved on to examine the impact of Brexit on financial and commercial corruption. Dr Pasculli started by explaining that the UK government has clearly explained that the UK will leave the single market even though the EU market is crucial. The conditions imposed by the European Union to the UK in relation to market access might be viewed by the general public as unreasonable and unfair. Such a perception could lead to a violation of legal rules, for there is a tendency to the rationalisation of corrupt practices when the law is seen as useless and/or unfair. This inevitably creates a subculture that encourages corruption more generally. Furthermore, Dr Pasculli observed that as the UK is looking to negotiate trade agreements with non-EU States it must be wary of such business opportunities. First a number of such countries do not comply with anti-money laundering and anti-corruption regulations. Second, companies might have to use corruption in order to pursue their business activities in corrupt-ridden countries. Looking at the countries mentioned by the UK government as potential business partners it is clear that the UK is looking at doing business in places that are high on the corruption index of Transparency International. In other words, British companies are going to move the trade to an environment which is more corrupt. As Dr Pasculli stressed, there is a need to raise awareness about this potential corruption threat. Nonetheless it might be possible to view these business opportunities in a positive light and argue that British companies could become exporters of good practices, strengthening the rule of law and global governance in these countries and more particularly in the Commonwealth.

In relation to systemic social integrity Dr Pasculli noted that the UK government is supporting high-skilled migration only. This, he believed, is extremely short-sighted. Research shows that corruption causes emigration, particularly of high-skilled migrants looking for opportunities in other countries as they are unable to move on in their home country. This however does not necessarily mean that high skilled migrants are immune to corruption. On the contrary studies demonstrate that immigration from corrupt countries boosts corruption in destination countries. As a result, Dr Pasculli suggested that to avoid the spread of corruption in the UK thorough background checks at the port of entry need to be carried out.

Is the UK continuing to be a global example in relation to anti-corruption practices? Dr Pasculli began by asserting that the UK has often been used as a model for anti-money laundering and anti-corruption measures and policies. The possibility of deregulation once outside the European Union might be viewed as a threat to the excellent contemporary regulation. Whilst some scholars argue that Brexit is a distraction from the anti-corruption agenda, Dr Pasculli contended that this is not necessarily the case. In fact in the past year a variety of institutions (eg the International Anti-Corruption Coordination Centre, the Office for Professional Body Anti-Money Laundering Supervision) have been set up and strategies (eg anti-corruption strategy) and laws (Criminal Finances Act 2017, implementation of the fourth money-laundering directive) drafted and adopted.

Brexit will also have an impact on UK financial sanctions which could potentially lead to an increase in corruption and money-laundering practices. Dr Pasculli first observed that financial sanctions are imposed on individuals in relation to their access to financial assets and services and are imposed with a view to pursue specific foreign and national security policies. Then Dr Pasculli noted that at the moment such sanctions can be imposed by the United Nations Security Council, the European Union (often in implementation of UN Security Council resolutions) and the UK Office of Financial Sanctions. After Brexit there will be no need for the UK to comply with the EU sanctions regime anymore. Dr Pasculli underlined that the new Sanctions and Anti-Money Laundering Bill 2017-2019 endows the executive with large powers for a broad range of purposes (eg fighting measures that challenge the rule of law). Further, it is flanked by weak individual safeguards such as ex post judicial review and no jurisdiction of the Court of Justice of the European Union (which had in the Kadi case protected individuals’ human rights against the application of UN Security Council resolutions). Post-Brexit the UK will not be able to sit in EU meetings that relate to sanctions and as its strong voice on sanctions usually gathered support from other Member States it is argued that that without the UK taking part in such discussions divisions amongst EU member States might show more prominently. That being said if the UK imposes sanctions that are not aligned to other States it will feel the pressure of other States as well as companies that are trading in such States. This in turn might increase the potential for corruption.

LastL but not least Dr Pasculli stressed that as the UK will be drafting a new raft of laws it must be careful that such laws are not providing opportunities for corruption and crime. Criminogenic lawmaking is indeed a potential risk post-Brexit with new schemes and laws being designed and individuals as well as companies finding ways to abuse or misuse such schemes (eg welfare benefit, taxes/fees/obligations, access to goods and services). Such potential for corruption is heightened if broad regulatory powers are given to authorities.

Looking forward Dr Pasculli shared with the audience his recommendations: (1) there must be some form of responsabilisation of politicians and companies, (2) education and ethicisation are key to maintaining integrity in public affairs, (3) ‘corruption proofing’ of legislation must become an established practice, (4) external controls must be increased.

 

UWE’s Centre for Applied Legal Research to be well represented at the SLSA Conference 2018

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The Annual Conference of the Socio-Legal Scholars Association is one of the high points of the legal academic calendar and this year UWE’s Centre for Applied Legal Research (CALR) will be out in force showcasing current research. Bristol University is hosting the conference this year from March 27 – 29.

Emma Whewell is presenting a paper in the mental health stream entitled “Pre-proceedings and capacity: the impact of professional language and other barriers on parents with learning disabilities”. Emma has undertaken research into pre-proceedings protocols in Family Law and this paper will showcase some of her research. Laura Walker has done research on resilience and mental health, but for the SLSA she is presenting a paper in the Law and Emotion stream entitled “The Role of Empathy in the Sentencing of Women in England and Wales”, one of several papers from the Centre for Legal Research that looks at criminal justice either directly or indirectly.

Ed Johnston will be presenting his paper entitled “The Defence Lawyer in the Modern Era and the Evolving Criminal Trial” reporting on his research in the criminal justice field. He is not the only UWE researcher presenting on criminal justice topics as Professor Phil Rumney is chairing two panels in the Sexual Offences stream and is presenting a paper with Duncan McPhee (Criminology) entitled “Exploring the Impact of Multiple Victim Vulnerabilities on Rape Investigations in England and Wales”. Tom Smith will be reporting on a pilot study undertaken at the Bristol Magistrates Courts looking at the lack of local newspaper reporting of the courts. Tom will be presenting with Marcus Keppel-Palmer and the partners from the Journalism Department, Sally Reardon and Phil Chamberlain. An early report was made to the Society of Editors and quoted by John Whittingdale MP.

Looking at criminal offences in the context of sports law is Matt Hall who is presenting a paper based around his PhD research into the offences around alcohol and drunkenness at football stadia. Matt will be arguing the case for liberalising the laws which apply only in the context of football and not other sports. Matt will also be co-presenting a second paper in the Sports law stream with Marcus Keppel-Palmer reporting on their content analysis of sports photographs in national newspapers in a paper entitled “The Connoted Message of Sports Photography in National Newspapers”. Marcus will have a busy conference as he is also presenting a paper in the Law and Music stream entitled “Law, Outlaw and Deviancy in Bro Country“.

The week before Easter also sees the Association of Law Teachers Conference, to be held at Keele University, and amongst UWE’s researchers presenting papers there are Kathy Brown, Rachel Wood and Thomas Webber.

The Social Costs of Offshore Finance

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Dr Mary Alice Young interview – The Paradise Papers

The Centre for Applied Legal Research’s Dr Mary Alice Young was interviewed this month by Luke Vargas, from the U.N Headquarters in New York. The subject was the Paradise Papers and the radio interview was recorded for “Wake”, a weekly foreign policy broadcast produced by Talk Media News and circulated to more than 300 radio stations in the US.

The full transcript can be found here: http://bit.ly/2EYRfAr